SUPREME
COURT OF CANADA
Citation:
Quebec (Attorney General) v. Guérin, 2017 SCC 42
|
Appeal heard:
January 11, 2017
Judgment
rendered: July 27, 2017
Docket:
36775
|
Between:
Attorney
General of Quebec
Appellant
and
Ronald
Guérin
Respondent
-
and -
Conseil
d’arbitrage, Fédération des médecins spécialistes du Québec and Régie de
l’assurance maladie du Québec
Interveners
Official English Translation: Reasons of Wagner and Gascon JJ. and reasons of Côté J.
Coram:
McLachlin C.J. and Karakatsanis, Wagner, Gascon, Côté, Brown and
Rowe JJ.
Joint Reasons for
Judgment:
(paras. 1 to 64)
|
Wagner and Gascon JJ. (McLachlin C.J. and Karakatsanis J.
concurring)
|
Joint Reasons
Concurring in the Result:
(paras. 65 to 82)
|
Brown and Rowe JJ.
|
Dissenting
Reasons:
(paras. 83 to 112)
|
Côté J.
|
Note: This document is subject to editorial revision before its
reproduction in final form in the Canada Supreme Court Reports.
quebec (attorney general) v. guérin
Attorney General of Quebec Appellant
v.
Ronald Guérin Respondent
and
Conseil d’arbitrage,
Fédération des médecins spécialistes du
Québec and
Régie de l’assurance maladie
du Québec Interveners
Indexed as: Quebec (Attorney General) v. Guérin
2017 SCC 42
File No.: 36775.
2017: January 11; 2017: July 27.
Present: McLachlin C.J. and Karakatsanis, Wagner, Gascon, Côté,
Brown and Rowe JJ.
on appeal from the court of appeal for quebec
Administrative
law — Judicial review — Standard of
review — Arbitration — Statutory provision stating that dispute resulting from
interpretation and application of agreement entered into under Health Insurance
Act to be submitted to council of arbitration — Arbitrator dismissing dispute
submitted by medical specialist — Standard of review applicable to arbitrator’s
decision that there is no arbitrable dispute and that specialist did not have
standing — Whether dispute raises true question of jurisdiction in relation to
arbitrator — Health Insurance Act, CQLR, c. A‑29, ss. 19, 54.
Health
law — Health insurance — Medical specialists —
Specialized collective bargaining scheme — Arbitration — Nature of dispute
— Standing — Agreement providing for recognition and designation of medical
imaging laboratories that eligible to receive digitization fee — Medical
specialist contesting refusal to declare certain laboratories eligible for fee
— Whether specialist’s proceeding is arbitrable dispute
— Whether specialist has standing to submit dispute — Health Insurance Act,
CQLR, c. A‑29, ss. 19, 54.
The Health
Insurance Act (“Act”) provides that the
remuneration and working conditions of health care professionals are to be
established by way of a collective bargaining mechanism
that resulted, in this case, in the Accord‑cadre entre le
ministre de la Santé et des Services sociaux et la Fédération des médecins
spécialistes du Québec aux fins de l’application de la Loi sur l’assurance
maladie (“Framework Agreement”). The Fédération and the Ministère de la
Santé et des Services sociaux (collectively, “negotiating parties”) created a digitization fee to encourage radiologists to modernize
their equipment. This fee is reserved for laboratories that the negotiating
parties jointly recognize and designate, following a procedure and applying
criteria they themselves have provided for in the
Protocole concernant la radiologie diagnostique (“Protocol”), one of the
schedules to the Framework Agreement. Section 54 of the Act provides that a “dispute resulting from the interpretation or
application of [the Framework Agreement] is submitted to a council of
arbitration, to the exclusion of any court of civil jurisdiction”. A distinction is made in the Framework
Agreement between a [translation]
“dispute with respect to fees” raised by a physician and a “collective dispute”
raised by the Fédération.
G, a radiologist who is a member of the Fédération,
applied to the negotiating parties for a declaration
that certain clinics were eligible for the digitization fee. His application
was denied. G contested that decision by submitting a dispute to the council of arbitration. The arbitrator, who was appointed to perform the functions of the
council of arbitration on his own, found that he lacked jurisdiction to grant G the declaration being sought and that, at any rate, G did not have
standing to submit the dispute. The motion judge
granted G’s motion for judicial review, finding that the arbitrator’s decision
was unreasonable. The majority of the Court of Appeal
upheld the motion judge’s decision.
Held
(Côté J. dissenting): The appeal should be allowed and the award of
the council of arbitration restored.
Per
McLachlin C.J. and Karakatsanis, Wagner and Gascon JJ.:
The arbitrator’s conclusions were reasonable. The
reasonableness standard necessarily applies, because the arbitrator was called
upon to interpret and apply his enabling statute, the Framework Agreement and
the Protocol, which are at the core of his mandate and expertise. The issues in this case do not raise a
true question of jurisdiction in relation to the council of arbitration. On the one hand, it is well established
that the reasonableness standard applies where an arbitrator must determine, by
interpreting and applying his or her enabling legislation and related
documents, whether a matter is arbitrable. Applying the reasonableness standard to such a question undermines
neither the rule of law nor the other constitutional bases of judicial review.
In contrast, the effect of applying the correctness standard would be to
undermine the presumption in favour of the reasonableness standard that has
been consistently recognized and endorsed by the Court in numerous cases. On the other hand, the question of G’s
standing, too, relates to the arbitrator’s interpretation of his enabling
legislation and of the Framework Agreement and does not cast doubt on his
authority to make the inquiry submitted to him. Finally, the rule of law does not require the application of the
correctness standard here. The fact that a question might give rise to
conflicting interpretations does not on its own support a conclusion that that
standard applies.
The
arbitrator’s decision that the application did not raise an arbitrable dispute
is reasonable. The determination of whether the dispute
is arbitrable cannot be limited to s. 54 of the Act and
must take the relevant terms of the Protocol into account. According to the arbitrator’s interpretation of the Protocol, the
negotiating parties had reserved for themselves the authority to decide whether
to recognize a laboratory, and had in so doing excluded that decision from the
arbitration process. But the
subject matter of G’s proceeding was a declaration recognizing the laboratories
for the period at issue in the application, as he was
asking the arbitrator to rule on that question in place
of the negotiating parties. It
was reasonable for the arbitrator to conclude that if he were to rule on the
dispute, the effect would be to alter the negotiated content of the Protocol by
stripping the negotiating parties of their exclusive discretion under the
Protocol.
It was also reasonable for the arbitrator to conclude that G did not
have standing because, under the Framework Agreement and the Act, only the
Fédération can submit such a dispute to a council of arbitration. The Act gives the Fédération a monopoly of
representation in respect of its members both for the negotiation and for the application of the Framework
Agreement except in the case of a dispute with respect to fees, and this case did not involve such a dispute. Section 54 does
not entitle G to have recourse directly to arbitration.
The main purpose of this section is to establish the exclusive nature of the
tribunal’s jurisdiction, not to define standing or determine who may submit a
dispute. The context of the Act as a whole also confirms this interpretation.
The statutory provisions that set out specific situations in which a health
professional may have recourse to arbitration would serve no useful purpose if
s. 54 nonetheless entitled him or her to submit every possible type of
dispute. Such an interpretation would also result in an
untenable increase in numbers of arbitration cases. Thousands
of medical specialists and other health professionals,
as well as health institutions and even third parties
such as contractors or patients, could have recourse to arbitration. It is impossible to imagine that to have
been the legislature’s intention as regards the purpose and scope of s. 54.
A
physician who feels aggrieved has a remedy in the general law of civil
liability. If G can establish that the Fédération’s
conduct involved bad faith, discrimination, arbitrary conduct or serious
negligence, he will be entitled to bring an action against it in court and to
be compensated for the resulting harm.
Per Brown and Rowe JJ.:
The issue of the arbitrator’s capacity to hear G’s
matter raised a question of jurisdiction, not of arbitrability, reviewable on
the standard of correctness. The mere fact that a
question of jurisdiction has not been discerned since Dunsmuir v. New
Brunswick, [2008] 1 S.C.R. 190, or that the jurisprudence on such
questions has been inconsistent, does not mean that they have ceased to exist.
In this case, the arbitrator saw his capacity to hear G’s matter as a
question of jurisdiction, as did the courts below. While an issue is not
arbitrable before a tribunal that has no jurisdiction to hear it, arbitrability
is distinct from jurisdiction and standing. Mischaracterizing
questions of jurisdiction as questions of arbitrability risks undermining the
coherence of the analytical structure in administrative law. The
arbitrator erred in concluding that he did not have jurisdiction to hear the
matter. Section 54 of the Act gives the council of
arbitration exclusive jurisdiction to hear “dispute[s] resulting from the
interpretation or application of an agreement”. A dispute concerning how the
agreement between the Fédération and the Minister operated with respect to G’s
facility was such a dispute.
While the
arbitrator’s decision on the question of G’s standing is reviewable for
reasonableness and was reasonable, questions of standing can be jurisdictional. A
court determining the standard of review to be applied to an
administrative tribunal’s decision on a question of standing must examine the
text of the statutory grant of power. Standing can be a jurisdictional question
where a tribunal is confined by the terms of its grant to hear only from a
certain class of persons. In this case, the passive text of
s. 54, the statutory grant of power, indicates
that the jurisdiction of councils of arbitration is not confined to hearing
matters brought from certain classes of persons. Furthermore, there is
no floodgate concern that would militate against granting standing. The more
persons who are placed in the difficult position in which G finds himself, the
more compelling the basis for allowing him and others to have their disputes
heard by an impartial decision‑maker.
Per
Côté J. (dissenting): The determination
of whether it was open to the arbitrator to hear the case raises a true question
of jurisdiction, to which the standard of correctness applies, and the
arbitrator erred in concluding
that he did not have jurisdiction to hear G’s dispute.
The
arbitrator also erred in concluding that G did not have
standing. This question is one
of jurisdiction, because the arbitrator cannot hear any dispute submitted by a
medical specialist, except one with respect to fees. Even if the reasonableness standard is applied, the arbitrator’s decision is not
defensible in respect either of the facts or of the law.
The arbitrator’s conclusion is unreasonable insofar as
it is based on a mischaracterization of the nature of the dispute and a
misinterpretation of s. 54 of the Act.
In
this case, the arbitrator concluded that the subject
matter of G’s proceeding was a declaration recognizing the laboratories for the
period at issue in the application and that G was asking that the rules negotiated by the parties to the Framework
Agreement be modified. But that
is a mischaracterization of the nature of the dispute that completely disregards the notice of dispute
that instituted the proceeding. On the contrary, G’s challenge was related to how the Fédération and
the Régie de l’assurance maladie du Québec had interpreted and applied the
conditions for recognition.
Section 54 of the Act is drafted in broad, clear language. The arbitrator interpreted it narrowly on the basis of the
language of the Framework Agreement, thereby disregarding
the fundamental principle of the hierarchy of rules, according to which the scope of the Framework Agreement must
depend on that of the Act, not the reverse. Moreover, the right provided for in s. 54 of the Act must be construed
broadly and liberally. When the
negotiating parties decide on and designate general radiology laboratories for
the purposes of the digitization fee, they are interpreting and applying the
agreement within the meaning of s. 54. A dispute submitted to the
arbitrator thus results from a difference of opinion between the medical
specialists and the negotiating parties. The Fédération’s monopoly of representation does not extend that far. Principles of Quebec labour law,
such as that of the monopoly of representation granted to a union, should not
be imported into the collective bargaining scheme provided for in the Act
unless the Act expressly provides for this.
Lastly,
the courts would not have been an appropriate forum for
G, as his allegations correspond to none of the types
of conduct on the basis of which he might bring an action against the Fédération.
Cases Cited
By Wagner and Gascon JJ.
Considered:
Northrop Grumman Overseas Services Corp. v. Canada (Attorney
General), 2009 SCC 50, [2009] 3 S.C.R. 309; Pérès v.
Québec (Commission de la fonction publique), 2000 CanLII 18759; referred to: Dunsmuir v. New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Alberta
(Information and Privacy Commissioner) v. Alberta Teachers’ Association,
2011 SCC 61, [2011] 3 S.C.R. 654; Rogers Communications Inc.
v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35,
[2012] 2 S.C.R. 283; Mouvement laïque québécois v. Saguenay
(City), 2015 SCC 16, [2015] 2 S.C.R 3; Commission
scolaire de Laval v. Syndicat de
l’enseignement de la région de Laval, 2016 SCC 8, [2016]
1 S.C.R. 29; Nor‑Man Regional Health Authority Inc.
v. Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3
S.C.R. 616; Canadian Union of Public Employees, Local 963 v. New Brunswick
Liquor Corp., [1979] 2 S.C.R. 227; Edmonton (City) v. Edmonton
East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293;
Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57,
[2015] 3 S.C.R. 615; ATCO Gas and Pipelines Ltd. v. Alberta
(Utilities Commission), 2015 SCC 45, [2015] 3 S.C.R. 219; Nolan
v. Kerry (Canada) Inc., 2009 SCC 39, [2009] 2 S.C.R. 678; Canon Canada Inc. v. Sylvestre, 2012
QCCS 1422; Parry Sound (District) Social Services Administration Board v.
O.P.S.E.U., Local 324, 2003 SCC 42, [2003] 2 S.C.R. 157; Ontario
Refrigeration and Air Conditioning Contractors Assn. v. United Association of
Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the
United States and Canada Local 787, 2016 ONCA 460, 131 O.R. (3d) 665, leave
to appeal refused, No. 37179, March 10, 2017, [2017] Bull.
S.C.C. 431; McLean v. British Columbia (Securities Commission),
2013 SCC 67, [2013] 3 S.C.R. 895; Tervita Corp. v.
Canada (Commissioner of Competition), 2015 SCC 3, [2015]
1 S.C.R. 161; Wilson v. British Columbia (Superintendent of Motor
Vehicles), 2015 SCC 47, [2015] 3 S.C.R. 300; Canadian
Merchant Service Guild v. Teamsters, Local Union 847, 2012 FCA 210, 433
N.R. 200; Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016]
1 S.C.R. 770; Smith v. Alliance Pipeline Ltd., 2011
SCC 7, [2011] 1 S.C.R. 160; Domtar Inc. v. Quebec (Commission
d’appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756;
Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; Noël v.
Société d’énergie de la Baie James, 2001 SCC 39, [2001]
2 S.C.R. 207; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Syndicat
des techniciens et techniciennes du cinéma et vidéo du Québec v. Mancone,
[2002] R.J.Q 2905; Centre hospitalier Régina Ltée v. Labour Court,
[1990] 1 S.C.R. 1330.
By
Brown and Rowe JJ.
Applied: Northrop
Grumman Overseas Services Corp. v. Canada (Attorney General), 2009
SCC 50, [2009] 3 S.C.R. 309; considered: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’
Association, 2011 SCC 61, [2011] 3 S.C.R. 654;
referred to: Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.
By
Côté J. (dissenting)
Northrop Grumman
Overseas Services Corp. v. Canada (Attorney General), 2009 SCC 50,
[2009] 3 S.C.R. 309; Dunsmuir v. New Brunswick, 2008
SCC 9, [2008] 1 S.C.R. 190; Syndicat de la fonction publique
du Québec v. Quebec (Attorney General), 2010 SCC 28, [2010]
2 S.C.R. 61; Noël v. Société d’énergie de la Baie James, 2001
SCC 39, [2001] 2 S.C.R. 207.
Statutes
and Regulations Cited
Act respecting the Régie de l’assurance maladie du Québec, CQLR, c. R‑5, s. 2.
Agreement
on Internal Trade, (1995) 129 Can. Gaz. I, 1323.
Canadian
International Trade Tribunal Act, R.S.C. 1985, c. 47 (4th Supp .),
s. 30.11(1) .
Canadian
International Trade Tribunal Procurement Inquiry Regulations, SOR/93‑602,
s. 3(1).
Health
Insurance Act, CQLR, c. A‑29, ss. 19, 21, 22.0.1, 22.2, 54,
104.1.
Interpretation
Act, CQLR, c. I‑16, s. 41.
Labour Code, CQLR, c. C‑27, ss. 47.5,
69.
Public
Service Act, CQLR, c. F‑3.1.1.
Authors Cited
Brown, Donald J.M., and John M. Evans, with the
assistance of David Fairlie. Judicial Review of Administrative Action in
Canada. Toronto: Thomson Reuters, 2013 (loose‑leaf updated April
2017, release 1).
Côté, Pierre‑André, in collaboration with Stéphane Beaulac and
Mathieu Devinat. The Interpretation of Legislation
in Canada, 4th ed. Toronto: Carswell, 2011.
Driedger,
Elmer A. Construction of Statutes, 2nd ed. Toronto:
Butterworths, 1983.
Garant, Patrice, avec la collaboration de Philippe Garant et Jérôme
Garant. Droit administratif, 6e éd. Cowansville, Que.:
Yvon Blais, 2010.
Petit Robert: dictionnaire alphabétique et analogique de la langue
française, nouvelle éd. Paris: Le Robert, 2012, “différend”.
Reid, Hubert, avec la collaboration de Simon Reid. Dictionnaire
de droit québécois et canadien avec table des abréviations et lexique anglais‑français,
4e éd. Montréal:Wilson & Lafleur, 2010, “différend”.
APPEAL from a judgment of the Quebec Court of Appeal (Duval Hesler C.J.
and Savard and Schrager JJ.A.), 2015 QCCA 1726, [2015] AZ‑51223767, [2015]
J.Q. no 10976 (QL), 2015 CarswellQue 9920 (WL Can.), affirming a decision of Grenier J., 2013 QCCS 6950, [2013] AZ‑51046703,
[2013] J.Q. no 19116 (QL), 2013 CarswellQue 14437 (WL Can.),
allowing the application for judicial review of a decision of the council of
arbitration, no 12‑DS‑499, January
29, 2013. Appeal allowed, Côté J. dissenting.
Patrice Claude and Isabelle
Brunet, for the appellant.
René Piotte, Stéphanie Lalande
and Pierre‑Alexandre Boucher for the respondent.
Francis Meloche and Sylvain
Bellavance, for the intervener Fédération des médecins spécialistes du
Québec.
No
one appeared for the interveners Conseil d’arbitrage and Régie de
l’assurance maladie du Québec.
English version of the judgment of McLachlin C.J. and
Karakatsanis, Wagner and Gascon JJ. delivered by
Wagner
and Gascon JJ. —
I.
Overview
[1]
This appeal concerns the reasonableness of an
arbitration award made in the context of a specialized collective bargaining
scheme, namely the scheme for medical specialists and the government of Quebec
under the Health Insurance Act, CQLR, c. A‑29 (“Act”). More
specifically, the award dealt with the very concept of a dispute and with
standing to submit such a dispute to a council of arbitration under the Act and
the Accord‑cadre entre le ministre de la Santé et des Services sociaux
et la Fédération des médecins spécialistes du Québec aux fins de l’application
de la Loi sur l’assurance maladie (“Framework Agreement”).
[2]
The Protocole concernant la radiologie
diagnostique (“Protocol”) is one of a large number of schedules that were
negotiated under the Framework Agreement. It sets out the conditions for
payment of a digitization fee, as well as what a medical imaging laboratory
must do, and what criteria it must satisfy, to become eligible for that fee.
The respondent, Dr. Ronald Guérin, is a radiologist. He wishes to contest
by way of arbitration a joint decision of the Ministère de la Santé et des
Services sociaux (“Ministère”) and the Fédération des médecins spécialistes du
Québec (“Fédération”) (collectively, “negotiating parties”) to refuse to
declare that the laboratories he represents are eligible to receive that fee
for the years 2009 through 2011.
[3]
The council of arbitration decided that
Dr. Guérin’s objection could not give rise to an arbitrable dispute under
the Act and the Framework Agreement and that, in any event, only the Fédération
would have had standing to submit such a dispute. Further to a motion for
judicial review, the Superior Court and the majority of the Court of Appeal
both found that the council’s decision was unreasonable, concluding that it was
open to Dr. Guérin under the Act to submit his dispute to the council of
arbitration. The dissenting judge would have upheld the council’s decision,
finding that its analysis was justified having regard to the Act and the
Framework Agreement.
[4]
We would allow the appeal and restore the
council of arbitration’s award. It was reasonable for the council to conclude
that, under the Framework Agreement, the Protocol and the Act, Dr. Guérin’s
proceeding did not raise an arbitrable dispute, because the Fédération and the
Ministère had reserved for themselves the full discretion to designate the
medical imaging laboratories that would be eligible to receive the digitization
fee. It was also reasonable for the council to conclude that, in any event,
Dr. Guérin did not have standing to submit such a dispute for arbitration,
as it was a collective dispute that the Framework Agreement lawfully reserved
for the Fédération. Moreover, contrary to what the majority of the Court of
Appeal stated, physicians who feel aggrieved are not without recourse: there is
a general law principle that permits them to sue the organization that
represents them if it has breached its duty of fair representation.
II.
Background
A.
Legislative Framework[1]
[5]
The Act establishes a government‑funded universal
health care system. It provides that the remuneration and working conditions of
health care professionals are to be established by way of a collective
bargaining mechanism. To this end, the Ministère may, “[f]or the purposes of
this Act . . . enter into an agreement with the representative
organizations of any class of health professionals” (s. 19 of the Act).
Such an agreement “shall bind all professionals in the field of health who are
members of the body which made the agreement” (s. 21). The agreement in
question corresponds in the instant case to the Framework Agreement, a quite
complex document containing almost 45 schedules that has been amended over
50 times since being concluded. It is the Fédération, which the Ministère
has since 1970 recognized as the only organization representing medical
specialists in Quebec, that is responsible for the negotiation and application
of this agreement (Framework Agreement, sch. 1, s. 3.1).
[6]
The Act provides that “[a] dispute resulting
from the interpretation or application of an agreement [like the Framework
Agreement] is submitted to a council of arbitration, to the exclusion of any
court of civil jurisdiction” (s. 54). In this respect, the Framework
Agreement sets out an arbitration procedure, providing that [translation] “[a] dispute shall be filed
by a medical specialist or by the Fédération in accordance with [the
procedure]” (Framework Agreement, sch. 1, s. 20.1). A distinction is
made in this procedure between a “dispute with respect to fees”, that is, one
raised by a physician in relation to a claim for fees or to his or her service
agreement with a health institution, and a “collective dispute” raised by the
Fédération to resolve any other disagreement related to the application of the
Framework Agreement (Framework Agreement, sch. 1, ss. 20.2 and 20.5).
[7]
On June 1, 2009, the Fédération and the
Ministère created a digitization fee to encourage radiologists to modernize
their equipment. This fee is reserved for laboratories that the negotiating
parties jointly recognize and designate, following a procedure and applying
criteria they themselves have provided for in the Protocol (s. 4.1).
Rather than drawing up a list of eligible laboratories from the outset and
incorporating it into the Protocol, the parties decided to adopt a flexible
recognition mechanism that would enable them to adapt to the progressive
development of medical imaging laboratories in Quebec.
[8]
For a laboratory to be recognized, it must
satisfy the conditions set out in the Protocol, and a physician must submit an
application to the negotiating parties (ss. 4.2 and 4.3 of the Protocol).
One of the requirements is that the modernized equipment be and remain the
property of radiologists (s. 4.2(iv) of the Protocol). The application is
first reviewed by a joint committee of representatives of the negotiating
parties, which recommends that the laboratory either be or not be recognized
(s. 4.4 of the Protocol). Further to that recommendation, the negotiating
parties decide on and designate the laboratories that will be recognized for
the purposes of the digitization fee (s. 4.5 of the Protocol). Finally,
the Régie de l’assurance maladie du Québec (“RAMQ”) implements that decision
(s. 4.6 of the Protocol). Once a laboratory has been recognized, the physician
may bill for the fee.
[9]
In September 2009, further to an arrangement
entered into with the Ministère, the Fédération informed radiologists that they
could on an exceptional basis have their laboratories recognized retroactively
to June 1, 2009 if they submitted an application to that effect by
November 1, 2009.
[10]
In October 2010, the negotiating parties
amended the Protocol once again to clarify the conditions concerning the
ownership of radiology equipment. This amendment applied as of June 1,
2009, that is, as of the day the fee first came into effect (Amendment 54 to
the Framework Agreement, s. 2.3).
B.
Factual Context
[11]
Dr. Guérin is a radiologist and a member of
the Fédération. In this case, he is acting as a medical specialist and the
medical director of a radiology clinic, and as the representative of 35
radiologists practising in other clinics belonging to the same company.
[12]
In October 2009, Dr. Guérin applied to the
negotiating parties for a declaration that the clinics in question were
eligible for the digitization fee. His application was denied, however, on the
basis that, because of the structure of the company, the laboratory equipment
was not directly or indirectly owned by radiologists. Dr. Guérin disagreed
with this interpretation of the [translation]
“ownership test”, but he nonetheless tried to comply with it by making some
changes to the company’s structure. He and his colleagues thus altered the
structure of their corporation’s share capital and adopted a new shareholder
agreement. This led the negotiating parties to inform Dr. Guérin in July
2011 that they would be recognizing the laboratories effective retroactively to
June 21, 2011, the day of the joint committee’s recommendation.
[13]
Although Dr. Guérin was happy that the
laboratories were being recognized, he felt that this recognition should be
retroactive to the day the fee was created or, at the very least, to
April 8, 2010, the date when the structure of the laboratories was
modified. A request to that effect was denied.
[14]
This impasse led him to submit a dispute to the
council of arbitration set up under s. 54 of the Act. The Fédération and
the Ministère opposed him jointly in this proceeding, arguing as a preliminary
matter that a decision regarding the recognition of a laboratory by the negotiating
parties for the purposes of the digitization fee cannot give rise to an
arbitrable dispute. They also maintained that only the Fédération, and not a
physician, could submit such a dispute.
III.
Judicial History
A.
Arbitration Award (Mtre. Marc Gravel), No. 12‑DS‑499, January 29, 2013
[15]
Arbitrator Gravel, who was appointed to perform
the functions of the council of arbitration on his own, found that he lacked
jurisdiction to grant Dr. Guérin the first of the conclusions being sought
and to recognize the laboratories for the purposes of the digitization fee. In
the arbitrator’s opinion, the Framework Agreement did not give him the
authority to make such a decision in place of the negotiating parties. Given
that recognition is an [translation]
“inevitable and necessary prerequisite” to a claim for the digitization fee, a
physician cannot submit a dispute with respect to fees without first having
obtained this recognition (arbitration award, at para. 33, reproduced in
A.R., at p. 25).
[16]
The arbitrator also concluded that the
Fédération has a monopoly of representation in respect of its members. In his
view, it is up to the Fédération and the Ministère to negotiate the recognition
of laboratories. A physician has no role to play in those negotiations and
cannot challenge their outcome by way of arbitration absent clear language to
that effect. It was therefore not open to Dr. Guérin to [translation] “ask a council of
arbitration . . . to modify in respect of him the rules that the
parties to the Framework Agreement, and they alone, negotiated” (para. 57).
B.
Quebec Superior Court (Grenier J.), 2013 QCCS 6950
[17]
The motion judge granted Dr. Guérin’s
motion for judicial review. Applying the standard of reasonableness, she
concluded that the arbitrator’s decision was unreasonable because it did not
fall within a “range of possible, acceptable outcomes which are defensible in
respect of the facts and law” (para. 26 (CanLII), quoting Dunsmuir v.
New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47).
[18]
In the motion judge’s opinion, the only issue
was whether the council of arbitration had jurisdiction to consider the
dispute. She asserted in this respect that the arbitrator had [translation] “erred as regards the
subject of the case before him and as regards the scope of his jurisdiction” (para. 18).
Because, in her view, the case turned mainly on whether Dr. Guérin had
standing, she focused her analysis essentially on the interpretation of
s. 54 of the Act, rather than on that of the provisions of the Protocol
the arbitrator had discussed.
[19]
The motion judge maintained that what
Dr. Guérin had asked the arbitrator to do was not to recognize the
laboratories, but to correct the interpretation and application of the
conditions of the Protocol and to declare that the laboratories had satisfied
those conditions as of 2009. Thus, only the interpretation and application of
the Protocol — and not its substance — were at issue.
[20]
The motion judge concluded that s. 54 of
the Act, which was drafted in broad terms, entitles a physician to contest
decisions of the negotiating parties by way of arbitration. The negotiating
parties cannot restrict a physician’s access to arbitration, as s. 54 of
the Act authorizes them only to decide on the composition of a council of
arbitration and to appoint arbitrators. The standard dictionary definition of
“dispute” should apply, which means that a dispute may be submitted in respect
of any difference of opinion, including the one at issue in this case.
C.
Quebec Court of Appeal, 2015 QCCA 1726
(1)
Majority reasons of Duval Hesler C.J.Q. and
Schrager J.A.
[21]
The majority of the Court of Appeal upheld
Grenier J.’s decision. They began by noting that the parties were not
questioning the applicability of the reasonableness standard. In the majority’s
opinion, however, the arbitrator’s decision to the effect that he lacked
jurisdiction to rule on the issue before him and that Dr. Guérin did not
have standing to submit the dispute was unreasonable.
[22]
Like the motion judge, the majority of the Court
of Appeal devoted most of their reasons to the question of standing. They
concluded that a physician is entirely free to have recourse to arbitration in
order to resolve an issue relating to the interpretation of the Framework
Agreement or to its application to his or her particular situation.
Section 54 of the Act is clear, and it provides that a dispute concerning
the interpretation or application of an agreement entered into under the Act
can be submitted to arbitration. The Framework Agreement unduly limits the
scope of s. 54 by reserving for the Fédération recourse to arbitration for
any dispute other than those that physicians are expressly authorized to submit
to arbitration. In addition, the language of the provisions that set out the
arbitration procedure is non‑exhaustive.
[23]
Finally, the majority of the Court of Appeal
rejected any analogy to the scheme of the Labour Code, CQLR, c. C‑27,
in part because of the absence in the Act of a recourse analogous to the one
provided for in s. 47.5 of the Code for failure to represent.
Dr. Guérin was therefore without any recourse to contest an interpretation
of the Framework Agreement that was prejudicial to him.
(2)
Dissenting reasons of Savard J.A.
[24]
The dissenting judge would have allowed the
appeal, as she considered the arbitrator’s decision to be reasonable.
[25]
She noted that the arbitrator had found that the
dispute concerned the recognition of laboratories, a final decision for which
the negotiating parties were responsible and that he lacked jurisdiction to
review. That is why he had not inquired into whether the mechanism for
recognizing laboratories is compatible with the arbitration process provided
for in the Act and the Framework Agreement.
[26]
The dissenting judge observed that for the
majority, and for the motion judge, the dispute instead concerned the
interpretation of one of the criteria that had to be satisfied in order to
obtain the recognition being sought, not the mechanism for deciding whether
that recognition should be granted. But what had to be asked in applying the
reasonableness standard was whether the arbitrator’s analysis concerning the
subject matter of the dispute fell within a range of possible, acceptable
outcomes which were defensible in respect of the facts and law.
[27]
In the dissenting judge’s view, it had been
reasonable for the arbitrator to conclude that the decision to designate a
laboratory is one that falls to the negotiating parties and that cannot be
contested before a council of arbitration. The agreement between those parties
is binding on Dr. Guérin and his fellow physicians, and it is not open to
them to contest such a designation.
[28]
Finally, the dissenting judge concluded that
s. 54 of the Act does not preclude the negotiating parties from settling
their disputes otherwise than by way of arbitration. The provisions of the
Framework Agreement that reserve the possibility of submitting disputes to
arbitration for the Fédération except in the case of a dispute with respect to
fees are not contrary to s. 54 of the Act and are compatible with the Fédération’s
monopoly of representation, which resembles the monopoly existing in labour
law.
IV.
Issues
[29]
This being a case of judicial review, it will be
necessary first to identify the applicable standard of review before turning to
the merits to determine whether Dr. Guérin’s proceeding is a dispute
within the meaning of the Act and, if so, whether it was open to
Dr. Guérin himself to submit it to the council of arbitration.
V.
Analysis
A.
Applicable Standard of Review is Reasonableness
[30]
The courts below were unanimous in concluding
that the applicable standard of review was reasonableness (motion judge’s
reasons, at para. 26; C.A. reasons, at paras. 21, 45‑46 and
71). Indeed, the parties agreed on this point in the Court of Appeal. In
this Court, although Dr. Guérin acknowledged that the current law supports
the application of that standard, he asserted that the standard of correctness
should nonetheless apply (R.F., at paras. 15‑17; transcript, at pp. 58‑59
and 80‑81).
[31]
The courts below were right to apply the reasonableness
standard. Reasonableness necessarily applies, because the council of
arbitration was called upon to interpret and apply its enabling statute, the
Framework Agreement and the Protocol, which are at the core of its mandate and
expertise (notice of dispute (reproduced at para. 2 of the arbitration
award), in the recitals and at paras. 1‑3; Dunsmuir, at para. 54;
Alberta (Information and Privacy Commissioner) v. Alberta Teachers’
Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at para. 39; Rogers Communications
Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012
SCC 35, [2012] 2 S.C.R. 283, at para. 11; Mouvement
laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3, at para. 46;
Commission scolaire de Laval v. Syndicat de l’enseignement de la région de
Laval, 2016 SCC 8, [2016] 1 S.C.R. 29, at para. 32).
[32]
The two arguments on which Dr. Guérin
relies in asserting that the correctness standard should apply are without
merit. First, as both the motion judge (at para. 26) and all the judges of
the Court of Appeal (at paras. 21 and 85) recognized, it is wrong to argue
that this appeal raises a true question of jurisdiction in relation to the
council of arbitration (Nor‑Man Regional Health Authority Inc. v.
Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3
S.C.R. 616, at para. 35). As this Court has noted in the past, courts
should “not be alert to brand as jurisdictional, and therefore subject to
broader curial review, that which may be doubtfully so” (Canadian Union
of Public Employees Local 963 v. New Brunswick Liquor Corp., [1979] 2
S.C.R. 227, at p. 233, quoted in Dunsmuir, at para. 35). In a
similar vein, this Court has frequently stressed that, if they exist, “[t]rue questions of jurisdiction are narrow and will be
exceptional” (Alberta Teachers, at para. 39; see also at para. 34;
Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016
SCC 47, [2016] 2 S.C.R. 293, at para. 26; Canadian Broadcasting Corp. v.
SODRAC 2003 Inc., 2015 SCC 57, [2015] 3 S.C.R. 615, at para. 39; ATCO
Gas and Pipelines Ltd. v. Alberta (Utilities Commission), 2015 SCC 45,
[2015] 3 S.C.R. 219, at para. 27). Such questions
must be understood “in the narrow sense of whether or not the tribunal had the
authority to make the inquiry” (Dunsmuir, at para. 59; see
also Nolan v. Kerry (Canada) Inc., 2009 SCC 39, [2009] 2 S.C.R. 678, at para. 34;
Canon Canada Inc. v. Sylvestre, 2012 QCCS 1422, at para. 29
(CanLII)).
[33]
It is clear, on the one hand, that the council
of arbitration had jurisdiction to interpret and apply agreements entered into
under the Act, such as the Framework Agreement and its schedules, including the
Protocol. It therefore had the authority to make the inquiry and to determine
whether Dr. Guérin’s proceeding raised an arbitrable dispute under the Act
and the Framework Agreement. Indeed, it is well established that the
reasonableness standard applies where an arbitrator must determine, by
interpreting and applying his or her enabling legislation and related
documents, whether a matter is arbitrable (Parry Sound (District) Social
Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, [2003]
2 S.C.R. 157, at para. 16). The fact that an arbitrator can dismiss a
proceeding on the basis that it does not constitute an arbitrable dispute does
not necessarily lead on its own to the conclusion that the proceeding raises a
true question of jurisdiction (see, e.g., Ontario
Refrigeration and Air Conditioning Contractors Assn. v. United Association of
Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the
United States and Canada Local 787, 2016 ONCA 460,
131 O.R. (3d) 665, at para. 55, leave to appeal refused, No. 37179,
March 10, 2017, [2017] Bull. S.C.C. 431).
[34]
When an arbitrator interprets his or her
enabling legislation to determine whether a dispute is arbitrable, applying the
reasonableness standard undermines neither the rule of law nor the other
constitutional bases of judicial review. In contrast, the effect of applying
the correctness standard by erroneously characterizing such a question as a
true question of jurisdiction would be to undermine the presumption in favour
of the reasonableness standard that has been consistently recognized and
endorsed by this Court in numerous cases since Alberta Teachers (para. 39;
see, e.g., Rogers, at para. 11; McLean v. British Columbia
(Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895, at para. 21;
SODRAC 2003, at para. 35; Tervita Corp. v. Canada
(Commissioner of Competition), 2015 SCC 3, [2015] 1 S.C.R. 161, at para. 35;
ATCO Gas and Pipelines, at para. 28; Wilson v. British Columbia
(Superintendent of Motor Vehicles), 2015 SCC 47, [2015] 3 S.C.R. 300, at para. 17;
Saguenay, at para. 46; Commission scolaire de Laval, at para. 32;
Capilano, at para. 22).
[35]
On the other hand, the other issue, concerning
Dr. Guérin’s standing in this case, is not really a true question of
jurisdiction either. It is true that this Court applied the correctness
standard in Northrop Grumman Overseas Services Corp. v. Canada
(Attorney General), 2009 SCC 50, [2009] 3 S.C.R. 309, in which it found
that “[t]he issue [was] jurisdictional” in that it went to whether the Canadian
International Trade Tribunal could hear a complaint initiated by a non‑Canadian
supplier under the Agreement on Internal Trade, (1995) 129 Can. Gaz. I,
1323 (para. 10). Nonetheless, as the Court subsequently explained in Alberta
Teachers, its holding in Northrop that the question was subject to
“review on a correctness standard . . . was based on an established
pre‑Dunsmuir jurisprudence applying a correctness standard to this
type of decision, not on the Court finding a true question of jurisdiction”
(para. 33 (emphasis added)). This interpretation, which was endorsed by a
majority of this Court, is also authoritative.
[36]
Moreover, Brown and Evans observe that a number
of courts have held that standing was not a true question of jurisdiction, even
where the relevant enabling legislation addressed it (D. J. M. Brown
and J. M. Evans, with the assistance of D. Fairlie, Judicial
Review of Administrative Action in Canada (loose‑leaf), heading
14:4331, footnote 369, citing Canadian Merchant
Service Guild v. Teamsters, Local Union 847, 2012
FCA 210, 433 N.R. 200, at para. 19). In the instant case, too, the
question of Dr. Guérin’s standing relates to the council of arbitration’s
interpretation of its enabling legislation and of the Framework Agreement. This
question does not cast doubt on “the [council of arbitration’s] authority to
make the inquiry” submitted to it (Dunsmuir, at para. 59; see also Nolan,
at para. 34) but is, rather, intended to determine who — Dr. Guérin or the
Fédération — can submit it. That is far from the narrow and limited scope this
Court has attributed to true questions of jurisdiction.
[37]
Finally, contrary to what Dr. Guérin is now
arguing in this Court, this is not a case in which the rule of law requires the
application of the correctness standard. The fact that a question of law might
give rise to conflicting interpretations does not on its own support a
conclusion that the correctness standard applies (Wilson v. Atomic Energy of
Canada Ltd., 2016 SCC 29, [2016] 1 S.C.R. 770, at para. 17). Also,
Dr. Guérin cites no award in which an arbitrator adopted an interpretation
contrary to that of the arbitrator in the instant case. Thus, even if
conflicting lines of authority could lead to the application of the correctness
standard, which is itself not always the case (Atomic Energy, at para. 17;
Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160, at paras. 38‑39;
see also Domtar Inc. v. Quebec (Commission d’appel en matière de lésions
professionnelles), [1993] 2 S.C.R. 756, at pp. 784‑801), that
is, in any event, not the situation in the case at bar.
B.
Absence of an Arbitrable Dispute
[38]
Dr. Guérin has applied for a review of the
negotiating parties’ decision not to recognize the laboratories he represents
for purposes of the payment of the digitization fee from 2009 to 2011. The
council of arbitration concluded that it did not have the authority to grant
his application, because the application did not raise an arbitrable dispute
under the Act and the Framework Agreement. In our opinion, that decision was
reasonable.
(1)
Subject Matter
[39]
Any decision‑maker required to resolve a
dispute must first define the subject matter or essential character of the
dispute (Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, at para. 52).
In the case at bar, the arbitrator concluded that the subject matter of
Dr. Guérin’s proceeding was a declaration recognizing the laboratories for
the period at issue in the application.
[40]
In reaching this conclusion, the arbitrator did
not confine himself to Dr. Guérin’s description of the issue in his notice
of dispute, that is, that the dispute [translation]
“concerns the interpretation and application of section 4.[2](iv) of the
Protocol” (notice of dispute, at para. 1). He also considered the
conclusions being sought, and in particular the request for a declaration “that
the medical imaging laboratories [represented by Dr. Guérin] should be
recognized . . . as of June 1, 2009” and that the physicians
working there were “therefore entitled to the digitization fee” as of that date
(notice of dispute, conclusions). The arbitrator found on this basis that what
Dr. Guérin actually wanted him to do was to rule on the recognition of the
laboratories in place of the negotiating parties. Given that the subject matter
of the dispute thus related to the interpretation of the recognition mechanism
established by the Protocol, the arbitrator did not need to analyze the
provisions of the Framework Agreement and the Act with respect to the
arbitration process, or the provisions of the Protocol setting out the
eligibility criteria for the digitization fee. He instead focused on the
provisions of the Framework Agreement and the Protocol that confer the
authority to determine eligibility for the fee on the negotiating parties.
[41]
In considering the motion for judicial review,
the Superior Court and the Court of Appeal were limited to determining whether
the arbitration award was reasonable, including in relation to the subject
matter of the dispute. As the dissenting judge in the Court of Appeal indicated,
the motion judge and the majority of the Court of Appeal were in error in
instead reformulating the subject matter to find that the dispute related to
the interpretation and application of the conditions for eligibility for
recognition and to Dr. Guérin’s standing (motion judge’s reasons, at paras. 19‑20;
C.A. reasons, at paras. 38‑39). By altering the issue in this way,
they failed to show the council of arbitration the deference they owed it.
(2)
Only the Negotiating Parties Have the Authority
to Recognize Laboratories
[42]
The arbitrator concluded that he did not have
jurisdiction to rule on whether the laboratories should be recognized.
According to his interpretation of the Protocol, the negotiating parties had
reserved for themselves the authority to decide whether to recognize a
laboratory, and had in so doing excluded that decision from the arbitration
process. In his opinion, if he were to rule on the dispute, he would in
effect be substituting his own opinion for that of the negotiating parties and
circumventing the decision‑making mechanism they had negotiated. In
short, the arbitrator held that the proceeding did not raise an arbitrable
dispute.
[43]
The arbitrator’s decision in this regard is
reasonable. As it indicates, the negotiating parties have in the Protocol
clearly reserved for themselves the right and full discretion to decide whether
to recognize a laboratory. Not only did the negotiating parties argue together
in favour of this interpretation in both courts below, but it is fully
justified having regard to the words of the Protocol. The Protocol provides
that the role of the joint committee is limited to making recommendations,
which means that the committee’s opinion is not necessarily binding on the
negotiating parties:
[translation]
4.4. There shall be established a joint committee composed of equal
numbers of representatives of the Fédération and the Ministère de la Santé et
des Services sociaux to which shall be referred any applications for
recognition submitted under section 4.3 for the purposes of the digitization
fee.
After analyzing an application, the joint committee shall make a recommendation
to the negotiating parties. [Emphasis added.]
Moreover, s. 4.5 of
the Protocol provides unambiguously that the final decision, that of deciding on
and designating laboratories, belongs to the negotiating parties and no one
else, and it places no limits on the factors that might guide their decision:
[translation]
4.5. Further to the joint committee’s
recommendations, the negotiating parties shall decide on and designate
the general radiology laboratories that will be recognized for the purposes of
the digitization fee together with the applicable sectors of radiological
activity. [Emphasis added.]
[44]
Dr. Guérin’s arguments are insufficient to
justify a conclusion that the arbitrator’s interpretation of the Protocol was
unreasonable. His position presupposes that, even though the Ministère and the
Fédération had [translation]
“reserved for themselves the authority to interpret and apply the provisions of
the Protocol”, “a correct interpretation of the provisions establishing the
applicable rules would have led to their being applied such that” the
laboratories he represents were recognized as of June 1, 2009 (notice of
dispute, at paras. 3 and 14). The arbitrator did not address this argument
directly, but we note that although the Protocol does require that laboratories
meet all the criteria under s. 4.2 in order to be recognized, the
recognition of a laboratory is also subject to a decision by the negotiating
parties, which are not required to apply those criteria mechanically.
[45]
Furthermore, Dr. Guérin does not, nor did
he do so before the council of arbitration, contest the validity of the
decision‑making mechanism provided for in the Protocol, but had he done
so, it is our opinion that this argument would also fail. It was open to the
Ministère and the Fédération, under s. 19 of the Act, to reserve this
decision for themselves and to establish the appropriate mechanism by means of
the Framework Agreement. No one is disputing that the negotiating parties had
the authority to create a digitization fee by amending their Framework
Agreement as they did. And they also had the authority to decide on the
procedure for obtaining the new fee. Thus, the agreement between the parties
could, for example, have included a list of recognized laboratories without
setting out other criteria or providing for a recognition mechanism. The
parties instead decided — with the approval of the Conseil du trésor, and as it
was open to them to do — to create a different mechanism that would enable them
to adapt to the flexibility of their agreement and the evolving situation of
medical imaging laboratories in Quebec.
[46]
This, moreover, is why this type of decision‑making
mechanism is not uncommon in the public health system. The appellant, the
Attorney General of Quebec, noted in this Court, although this comparative
argument had not been made before the council of arbitration, that agreements
concluded under the Act often establish several fee classes and sometimes
confer on the negotiating parties, either directly or through a parity
committee, the task of reaching an agreement and specifying which institutions
or professionals will be able to obtain the fees having regard to needs and
changing circumstances. Likewise, it is not uncommon for such agreements to
provide that the negotiating parties may put an end to any dispute, even an
individual dispute, by way of an agreement (A.F., at paras. 44 and 57; see, for example, s. 24.04 of the Entente
relative à l’assurance maladie et à l’assurance hospitalisation entre le
ministre de la Santé et des Services sociaux et la Fédération des médecins
omnipraticiens du Québec, A.R., at p. 222; s. 24.04 of the Entente
relative à l’assurance maladie entre le ministre de la Santé et des Services
sociaux du Québec et l’Association des chirurgiens dentistes du Québec,
A.R., at p. 232; s. 17.04 of the Entente relative à l’assurance
maladie entre le ministre de la Santé et des Services sociaux et l’Association
professionnelle des optométristes du Québec, A.R., at p. 240;
s. 7.05 of the Entente relative à l’assurance maladie entre l’Association
québécoise des pharmaciens propriétaires et le ministre de la Santé et des
Services sociaux, A.R., at p. 246; transcript, at pp. 42‑44).
[47]
It was therefore reasonable for the arbitrator
to conclude that if he were to rule on the dispute, the effect would be to
alter the negotiated content of the Protocol by stripping the negotiating
parties of their exclusive discretion under the Protocol and reducing the
recognition of laboratories to nothing more than the application of the
criteria set out in s. 4.2, which cannot be the case. In other words, even
if the arbitrator had decided to correct the interpretation of the conditions
of s. 4.2(iv) of the Protocol and their application to the laboratories
represented by Dr. Guérin, it would have been impossible for him to grant
recognition in place of the negotiating parties.
[48]
In this regard, it cannot of course, with all
due respect, be argued that the arbitrator’s decision on this question was
“incorrect” solely because Dr. Guérin’s proceeding concerns “[a] dispute resulting from the interpretation or application of an
agreement” within the meaning of s. 54 of the Act.
The determination of whether the dispute is arbitrable cannot be limited to
that section alone. Even though Dr. Guérin’s dispute results from the
interpretation and application of the Framework Agreement, the terms of the
Protocol — according to which it is the negotiating parties that are to decide
on and designate the laboratories that will be recognized for the purposes of
the digitization fee (s. 4.5) — cannot be disregarded.
[49]
In light of the principles from Dunsmuir,
it is therefore our opinion that the arbitrator’s solution falls within “a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir, at para. 47). We believe on this point
that the motion judge and the majority of the Court of Appeal did not ask
themselves the right question before concluding that the arbitration award was
unreasonable.
C.
Dr. Guérin Does Not Have Standing
[50]
In light of this conclusion, it is not strictly
necessary to address the second issue, that of standing. Indeed, this was not a
determinative aspect of the arbitration award. On the other hand, it was
essentially on this issue that the Superior Court and the majority of the Court
of Appeal based their conclusion that the decision was unreasonable. With
respect, we are of the opinion that it was in any event reasonable for the
arbitrator to conclude that Dr. Guérin did not have standing because,
under the Framework Agreement and the Act, only the Fédération can submit such
a dispute to a council of arbitration.
(1)
Only the Fédération Has Standing to Submit This
Dispute to Arbitration
[51]
On this point, the arbitrator noted that the Act
gives the Fédération a monopoly of representation that permits it to negotiate
the terms of the Protocol and to bind all its members, who cannot then contest
the outcome of the negotiation by way of arbitration. In his view, this means
that Dr. Guérin did not have standing to submit his dispute. We are of the
opinion that the arbitrator’s decision on this point, albeit brief, and
although it in some respects confused this issue with that of whether the
dispute was arbitrable, was also reasonable.
[52]
As the arbitrator mentioned, medical specialists
are bound by the provisions of the Framework Agreement, which the negotiating
parties entered into legally (ss. 19 and 21 of the Act; Framework
Agreement, sch. 1, s. 3.1). Nothing precludes that agreement from
delimiting the recourse to arbitration provided for in the Act. The only limits
in this respect are those of the provisions of the Act that specifically indicate
situations in which a health professional may submit a notice of dispute
directly to a council of arbitration: where the RAMQ has refused a payment or
required the reimbursement of an amount, or in the case of a disagreement
related to a professional services contract with a health institution (ss. 22.0.1
and 22.2 of the Act). The negotiating parties reiterated these two situations
in their arbitration procedure, but for other disagreements related to the
application of the Framework Agreement, they provided, as it was open to them
to do, that only the Fédération may submit a collective dispute (Framework
Agreement, sch. 1, ss. 20.2 to 20.5).
[53]
Under the Framework Agreement, therefore, the
Fédération is [translation] “the
only organization representing medical specialists” both for the negotiation
and for the application of any agreement entered into under s. 19 of the
Act (Framework Agreement, sch. 1, s. 3.1). The
Fédération thus exercises all recourses of the members
it represents, with the exception of those that are expressly reserved for
medical specialists by the Act or the Framework Agreement (Noël v. Société d’énergie
de la Baie James, 2001 SCC 39, [2001] 2 S.C.R. 207, at para. 41). In
short, except in the case of a dispute with respect to fees, medical
specialists are always represented by the Fédération in arbitration
proceedings.
[54]
In the case at bar, as the arbitrator rightly
noted, there can be no dispute with respect to fees that would entitle
Dr. Guérin to have recourse to arbitration under the Framework Agreement
and the Act. The digitization fee cannot be claimed before the laboratories
have been recognized, since it is that recognition that gives rise to an
entitlement to the fee. Nor is there a collective dispute between the
negotiating parties, as they are in agreement on the designation of the
laboratories. So there is nothing under either the Framework Agreement or the
Act that entitles the physician to submit a notice of dispute of this nature
directly to the council of arbitration.
[55]
Dr. Guérin asserts that, despite the
provisions of the Framework Agreement, s. 54 of the Act entitles him to
have recourse directly to arbitration, without having the Fédération act as an
intermediary, for any dispute resulting from the application or interpretation
of the agreement. This argument was endorsed by the Superior Court and the
majority of the Court of Appeal, and their decisions focused on it. Although
the arbitrator did not discuss the interpretation of s. 54, it is our
opinion that the main purpose of this section, which was drafted in broad
language, is to establish the exclusive nature of the tribunal’s jurisdiction,
not to define standing or determine who may submit a dispute. Not only is the
section totally silent as regards the standing issue, but the context of the
Act as a whole also confirms this interpretation. The legislature provided for
specific situations in which a health professional may have recourse to
arbitration (ss. 22.0.1 and 22.2 of the Act). But the provisions in
question would serve no useful purpose if s. 54 nonetheless entitled
health professionals to submit every possible type of dispute. To interpret s.
54 without taking those sections into account would be inconsistent with the
modern principle of statutory interpretation, according to which “it is
impossible to determine the meaning of words in the absence of context” (P.‑A. Côté,
with the collaboration of S. Beaulac and M. Devinat, The Interpretation of
Legislation in Canada (4th ed. 2011), at p. 46; see also Rizzo
& Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21, quoting
E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87).
Consequently, even if s. 54 is of public order pursuant to s. 104.1
of the Act, it does not constitute a basis for circumventing the provisions of
the Framework Agreement that limit the cases in which recourse can be had to
arbitration.
[56]
The arbitrator’s conclusion on this question is
supported by Pérès v. Québec (Commission de la fonction publique), 2000
CanLII 18759 (Que. Sup. Ct.), a case that was similar to the one at bar.
In Pérès, several employees of the federal public service had been
transferred to the provincial public service. A parity committee made up of
union and management representatives had been created to determine each
employee’s classification on the basis of job levels of the provincial public
service (paras. 17‑19). The committee had rendered a unanimous
decision, and some employees then wanted to appeal that decision to the
Commission de la fonction publique (paras. 22‑24). The Commission
declined jurisdiction, holding that it could not intervene in the negotiating
process that had been incorporated into the collective agreement in accordance
with the Public Service Act, CQLR, c. F‑3.1.1 (paras. 27‑28).
The Superior Court upheld that decision, holding that the individuals
represented by their union were bound by the agreement and its classification
process and could not circumvent them by way of a complaint to the Commission (paras. 37‑38).
In other words, [translation]
“[t]his classification agreement [was] binding on [the individuals in question]
in the same way that a new collective agreement would [have been] binding on
them” (para. 40). The situation in Pérès resembled the one in the
instant case. Because the negotiating parties agreed on the designation of the
laboratories in accordance with the Framework Agreement and the Act, it is not
possible for the physician to appeal that decision to a council of arbitration.
The decision is binding on the physician in the same way that the Framework
Agreement entered into by the parties is binding on him.
[57]
Lastly, the arbitrator stated, although perhaps
ambiguously, that Dr. Guérin [translation]
“cannot . . . be allowed to ask a council of arbitration to modify,
with respect to him, the rules that the parties to the Framework Agreement, and
they alone, negotiated” (para. 57). In our opinion, contrary to what both
the Superior Court and the majority of the Court of Appeal maintained, and
Dr. Guérin now argues, what the arbitrator meant by this was not that
Dr. Guérin was attempting to modify the conditions set out in s. 4.2
of the Protocol. Moreover, that is not what Dr. Guérin was doing. What we
understand from para. 57 is that the arbitrator was merely pointing out
that if the council of arbitration were to review a decision with respect to
recognition that had been negotiated jointly by the parties, it would be
altering the substance of the rules the parties had validly established. From
this perspective, he was right to say that Dr. Guérin was in fact trying
to change the rules of the Framework Agreement. To conclude that the arbitrator
erred in his characterization of the issue or by asking the wrong question is
to read too much into the words of the arbitration award.
(2)
The Effect of Accepting Dr. Guérin’s
Position Would Be an Untenable Increase in Numbers of Arbitration Cases
[58]
Not only is Dr. Guérin’s position not
justified having regard to the Framework Agreement and the Act, but we also
feel that accepting it would lead to consequences that the parties neither
anticipated nor intended. Although the arbitrator did not discuss this in his
decision, we note that if, as Dr. Guérin suggests, s. 54 of the Act
were interpreted so as to authorize any physician affected by a decision
resulting from the interpretation or the application of the Framework Agreement
or any similar agreement to contest that decision before a council of
arbitration individually, nothing would preclude another person affected by a
similar decision from availing himself or herself of the same remedy, too.
Thus, the thousands of medical specialists and other health professionals to
whom the scheme of the Act applies could then have recourse to the arbitration
mechanism.
[59]
Furthermore, health institutions, and even third
parties such as contractors or patients, could also have recourse to
arbitration if a decision resulting from the interpretation or application of
an agreement affected them directly. This would result in an untenable increase
in numbers of arbitration cases under s. 54 of the Act. We cannot imagine
that to have been the legislature’s intention as regards the purpose and scope
of that section.
D.
A Physician Who Feels Aggrieved Has a General
Law Remedy
[60]
Finally, contrary to what the majority of the
Court of Appeal asserted (at para. 35 of their reasons), Dr. Guérin
is not without recourse. The courts would have jurisdiction if he were to
allege that the Fédération had not properly discharged its duty of
representation.
[61]
In the general law of civil liability, an
association that has, as the Fédération does, an exclusive power of
representation also has “a duty . . . to perform its representative
function properly” (Noël, at para. 46; Syndicat
des techniciens et techniciennes du cinéma et vidéo du Québec v. Mancone,
[2002] R.J.Q. 2905 (C.A.)). This duty of representation
“prohibits four types of conduct: bad faith, discrimination, arbitrary conduct
and serious negligence” (Noël, at paras. 47‑48; Centre
hospitalier Régina Ltée v. Labour Court, [1990] 1 S.C.R. 1330, at pp. 1344‑47).
It originates in the general law, not just in the Labour Code, as the
majority of the Court of Appeal seem to have said (para. 35). If
Dr. Guérin can establish that the Fédération engaged in one of these types
of conduct in its dealings with him, he will be entitled to bring an action
against it in court and to be compensated for the resulting harm.
VI.
Conclusion
[62]
In short, given that the negotiating parties
chose to reserve for themselves the full discretion to decide on and designate
the laboratories that will be eligible to receive the digitization fee, the
arbitrator’s decision that this dispute was not one that could be submitted to
arbitration under the Act was reasonable.
[63]
It was also reasonable for the arbitrator to conclude
that Dr. Guérin did not have standing to submit the notice of dispute to
the council of arbitration. His decision was justified having regard to the
Fédération’s monopoly of representation. It was also justified by the fact that
no provision of either the Framework Agreement or the Act entitles a medical
specialist to submit a dispute directly to a council of arbitration other than
where the RAMQ has refused a payment or in a case involving a professional
services contract with a health institution.
[64]
The courts below accordingly erred in
intervening to overturn the arbitration award. We would allow the appeal and
restore the decision of the council of arbitration, with costs to the appellant
in all courts.
The following are the reasons delivered by
Brown and Rowe JJ. —
[65]
We have read the reasons of our colleagues,
Justices Wagner and Gascon. While we agree in the result, we see the matters of
the council of arbitration’s jurisdiction and of Dr. Guérin’s standing
before the council differently.
[66]
In brief, we are of the view that the issue of
the capacity of the arbitrator to hear Dr. Guérin’s matter raised a
question of jurisdiction, not of arbitrability. Applying the standard of
correctness, we find that the arbitrator erred in concluding that he did not
have jurisdiction to hear the matter. As to the matter of
Dr. Guérin’s standing, we agree with our
colleagues Wagner and Gascon JJ. that the arbitrator’s decision on this point
is reviewable for reasonableness and that it was reasonable, but we approach the
identification of the appropriate standard of review from a different starting
point. In our view, standing questions become jurisdictional where the
tribunal is confined by the terms of its statutory grant of authority to hear
only from a certain class of complainants. Because this was not the case here,
reasonableness review is appropriate.
[67]
We also agree with our colleagues that, as this
Court said in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190, at para. 59, questions of jurisdiction or vires refer to “the
narrow sense of whether or not the tribunal had the authority to make the
inquiry”. Identifying questions of jurisdiction is therefore, on this Court’s
jurisprudence, a straightforward matter: they arise “where the tribunal
must explicitly determine whether its statutory grant of power gives it the
authority to decide a particular matter” (Dunsmuir, at para. 59).
[68]
We acknowledge that the Court has also observed,
in obiter dicta, that “[s]ince Dunsmuir, [it] has not identified
a single true question of jurisdiction” or “seen such a situation” (Alberta
(Information and Privacy Commissioner) v. Alberta Teachers’ Association,
2011 SCC 61, [2011] 3 S.C.R. 654, at paras. 33 and 34). The reason for this may
be that an administrative tribunal’s jurisdiction (decisions on which are
reviewable for correctness) is established and confined by its enabling
(“home”) statute (the interpretation of which is presumptively reviewable for reasonableness).
While, as we make clear below, we do not in these reasons presume to cut this
Gordian knot, we maintain that the mere fact that this Court has not discerned
a question of jurisdiction since Dunsmuir does not mean that such
questions have ceased to exist, nor that we should be blind to one when it
clearly manifests itself. Indeed, the consequences of failing to identify a
jurisdictional question as such are serious: “as a matter of either
constitutional law or legislative intent, a tribunal must be correct on certain
issues in the sense that the courts and not the tribunal have the last word on
what is ‘correct’” (Alberta Teachers’ Association, at para. 94, per
Cromwell J., concurring). This “core principl[e]” of judicial review was laid
down by the Court in Dunsmuir:
Administrative powers are exercised by decision makers
according to statutory regimes that are themselves confined. A decision maker
may not exercise authority not specifically assigned to him or her. By acting
in the absence of legal authority, the decision maker transgresses the principle
of the rule of law. Thus, when a reviewing court considers the scope of a
decision-making power or the jurisdiction conferred by a statute, the standard
of review analysis strives to determine what authority was intended to be given
to the body in relation to the subject matter. This is done within the context
of the courts’ constitutional duty to ensure that public authorities do not
overreach their lawful powers . . . . [para. 29]
[69]
Here, the arbitrator saw his capacity to hear
Dr. Guérin’s matter as raising precisely that — a question of
jurisdiction (arbitration award, at paras. 31 and 34, reproduced in A.R., at p.
25) — as did Grenier J. at the Superior Court (2013 QCCS 6950,
at paras. 17-19 (CanLII)), the majority at the Court of Appeal (2015 QCCA 1726,
at paras. 27 and 42 (CanLII)) and the dissenting judge at the Court of Appeal
(para. 85). It is difficult to see the question otherwise, as it involved, in
the language of Dunsmuir, “the tribunal . . . explicitly
determin[ing] whether its statutory grant of power g[ave] it the authority to
decide a particular matter” (para. 59).
[70]
Our colleagues Wagner and Gascon JJ., however,
say that jurisdiction was not at issue here; rather, they view the matter
as one of arbitrability. It is true that an issue is not arbitrable before a
tribunal that has no jurisdiction to hear it. That said, arbitrability is
distinct from jurisdiction and standing. Jurisdiction is about who has
competence to decide what issues. Standing is about who can participate in the
proceedings. Arbitrability, however, is akin to justiciability, in that it goes
to whether the issue is capable of being considered legally and determined by
the application of legal principles and techniques (by, in this case, the
arbitrator). In our respectful view, the majority risks undermining the
coherence of the analytical structure in administrative law by
mischaracterizing questions of jurisdiction and standing as questions of
arbitrability. The question of whether the arbitrator had the authority to
decide on Dr. Guérin’s matter was, as we say and as this Court’s own
jurisprudence demonstrates, clearly jurisdictional.
[71]
It follows that the arbitrator had to answer
this question correctly (Dunsmuir, at para. 59; D.J.M. Brown and J.M. Evans, with the assistance of D. Fairlie, Judicial
Review of Administrative Action in Canada (loose-leaf), at topics 14:4331 and 14:4521). And,
in our view, in declining to hear Dr. Guérin’s matter, he did not. By s.
54 of the Health Insurance Act, CQLR, c. A-29, the Quebec National
Assembly gave the council of arbitration exclusive jurisdiction to hear
“dispute[s] resulting from the interpretation or application of an agreement”.
The matter raised by Dr. Guérin — specifically, a dispute concerning how the
agreement between the Fédération des médecins spécialistes du Québec
(“Fédération”) and the Minister of Health and Social Services operated with
respect to his facility — was clearly a “dispute resulting from the
interpretation or application of an agreement”.
[72]
But who can bring such a dispute to arbitration?
Were this dispute between the Minister and the Fédération, either would have
standing to do so. Does, however, Dr. Guérin have standing to bring a “dispute
resulting from the interpretation or application of an agreement” to
arbitration? Our colleagues Wagner and Gascon JJ. say that the arbitrator’s
decision that Dr. Guérin did not have standing is reviewable for
reasonableness, and that it was reasonable. We agree. Their reasons, however,
in our respectful view, elide two important points: first, questions of
standing can be jurisdictional
(in which case decisions thereon are reviewable for correctness); and second,
this being so, further explanation of why the arbitrator’s decision on standing
was reviewable for reasonableness is called for.
[73]
The first point is straightforward. Standing is
often described as raising a question of jurisdiction:
Administrative adjudicators must comply
with the terms of their statutory grants of authority. On occasion, it may be
necessary for a tribunal to determine explicitly whether or not the
grant authorizes it to decide a particular matter. When this situation arises,
as where there are two intersecting administrative schemes, or there is a
question of an applicant’s standing to institute proceedings, whether or
not a claim is statute-barred, the resulting decision will usually be subject
to review by the courts on the “correctness” standard of review. [Footnotes
omitted; underlining added.]
(Brown and Evans, at topic 14:4331.)
[74]
Similarly, in Northrop Grumman
Overseas Services Corp. v. Canada (Attorney General), 2009 SCC 50, [2009] 3
S.C.R. 309, at para. 10, this Court described a question of standing as “jurisdictional”. Our colleagues Wagner and Gascon JJ., citing Alberta
Teachers’ Association, at para. 33, say that the Court’s conclusion in Northrop
Grumman was the product of “pre-Dunsmuir jurisprudence applying a
correctness standard to this type of decision, not on the Court finding a true
question of jurisdiction” (para. 35). With great respect, this explanation is
simply not grounded in a tenable reading of Northrop Grumman. While the
Court did indeed look in that case to pre-Dunsmuir jurisprudence, its
conclusion that the matter raised a question of jurisdiction was expressed with
exclusive reference to the nature of the question posed: “The issue on this
appeal is jurisdictional in that it goes to whether the [Canadian
International Trade Tribunal] can hear a complaint initiated by a non-Canadian
supplier under the [Agreement on Internal Trade]. Accordingly, the
standard of review is correctness” (para. 10 (Emphasis added)).
[75]
We also acknowledge that, as our colleagues
observe, by referring to a decision of the Federal Court of Appeal, the case
law cited by the authors Brown and Evans in support of their statement that
questions of standing are jurisdictional is inconsistent. This is unsurprising,
as the jurisprudence is indeed inconsistent, having injected confusion even
into the definition of a question of jurisdiction itself. (Contrast Dunsmuir,
at para. 59 (“true jurisdiction questions arise where the
tribunal must explicitly determine whether its statutory grant of power gives
it the authority to decide a particular matter”) with Alberta
Teachers’ Association, at para. 42 (“I am unable to
provide a definition of what might constitute a true question of
jurisdiction”).)
[76]
But again, none of this means that questions of
jurisdiction have ceased to exist. While our colleagues do not suggest
otherwise, their reasons do not explain precisely why the question of
Dr. Guérin’s standing is not jurisdictional — or, more precisely, why
the presumption, stated by the majority in Alberta Teachers’ Association,
that this is not a question of jurisdiction but rather a question of statutory
interpretation, was not rebutted. Nor do they explain what would have been
required to rebut it. Of course, this is precisely the difficulty which
Cromwell J. identified in his concurring reasons in Alberta Teachers’
Association:
My colleague suggests that true questions of
jurisdiction or vires arise so rarely when a tribunal is interpreting
its home statute that it may be asked whether “the category of true questions
of jurisdiction exists” and further that “the interpretation by the tribunal of
‘its own statute or statutes closely connected to its function, with which it
will have particular familiarity’ should be presumed to be a question of
statutory interpretation subject to deference on judicial review” (para. 34). There
is no indication of how, if at all, this presumption could be rebutted.
I have two difficulties with this position.
The first difficulty concerns elevating to a
virtually irrefutable presumption the general guideline that a tribunal’s
interpretation of its “home” statute will not often raise a jurisdictional
question. This goes well beyond saying that “[d]eference will usually
result” with respect to such questions (as in Dunsmuir v. New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, at para. 54) or that “courts should usually
defer when the tribunal is interpreting its own statute and will only
exceptionally apply a correctness standard when interpretation of that statute
raises a broad question of the tribunal’s authority” (as in Nolan v. Kerry
(Canada) Inc., 2009 SCC 39, [2009] 2 S.C.R. 678, at para. 34).
. . . Creating a presumption without providing guidance on how one
could tell whether it has been rebutted does not, in my respectful view,
provide any assistance to reviewing courts. The second difficulty concerns
the suggestion that jurisdictional questions may not in fact exist at all.
Respectfully, these propositions undermine the foundation of judicial review of
administrative action. [Underlining added; paras. 91 and 92.]
[77]
To be clear, we do not doubt the authority of Alberta
Teachers’ Association as a decision of this Court. Rather, we point out
that its application is logically and practically impeded by the unresolved
problem — indeed, the analytical incoherence — which Cromwell J. identified
therein, and of which this case presents an obvious instance. As we say, we do
not presume to cut this Gordian knot here; and nor do our colleagues. We
maintain, however, that it follows from the foregoing, particularly the
statements of this Court in Dunsmuir and Northrop Grumman, and
from the commentary on the subject, that more needs to be said than our
colleagues say about why Dr. Guérin’s standing does not raise a
jurisdictional question. It is not, again with respect, solely a matter of home
statutes, presumed expertise and deference. Otherwise, reasonableness review of
the arbitrator’s decision on Dr. Guérin’s standing
would operate in marked tension with this Court’s statement in Northrop
Grumman. The two must be reconciled.
[78]
As this Court stressed in Dunsmuir,
“determining the applicable standard of review is accomplished by establishing
legislative intent” (para. 30). A court determining the standard of
review to be applied to an administrative tribunal’s decision on a question of
standing must therefore examine the text of the statutory grant of power. In Northrop
Grumman, for instance, the standing issue was whether a non-Canadian
supplier could bring a complaint regarding military procurement under the Canadian
International Trade Tribunal Act, R.S.C. 1985, c. 47 (4th Supp .). The Court
resolved this issue by first looking to s. 30.11(1) of that Act, which provides
that “a potential supplier may file a complaint with the Tribunal concerning
any aspect of the procurement process that relates to a designated contract and
request the Tribunal to conduct an inquiry into the complaint”. It then noted
that s. 3(1) of the Canadian International Trade Tribunal Procurement
Inquiry Regulations, SOR/93-602 further provides that a “designated
contract” is one described in certain trade agreements, including the Agreement on Internal Trade, (1995) 129
Can. Gaz. I, 1323, which requires that the supplier under a “designated
contract” be a “Canadian supplier”.
[79]
The significance of the foregoing is this: the statutory grant in Northrop
Grumman, taken together with its regulations and the Agreement on
Internal Trade which those regulations referentially incorporated,
explicitly restricted the class of suppliers which could bring a complaint.
This is what made standing a jurisdictional question in that case: the
tribunal was confined by the terms of its grant to hear only from a
certain class of complainants. For the tribunal to have heard from anyone else
would have exceeded the scope of its grant, thereby amounting to jurisdictional
error.
[80]
This brings us to the reason why the matter of
Dr. Guérin’s standing to appear before the council of arbitration in this case
does not present a question of jurisdiction. Recall that the arbitrator’s
statutory grant of power is contained in s. 54 of the Health Insurance Act
which reads, in relevant part:
A dispute resulting from the
interpretation or application of an agreement is submitted to a council
of arbitration, to the
exclusion of any court of civil jurisdiction.
[81]
The passive text in s.
54 of “is submitted” (“est soumis”), unaccompanied by any qualification
upon who does the actual “submitting”, stands in contrast to the
language of the statutory grant in Northrop Grumman (“Canadian
supplier”). The arbitrator’s decision on Dr. Guérin’s standing was, as our
colleagues Wagner and Gascon JJ. say, reviewable for reasonableness, but
principally because the jurisdiction of councils of arbitration is not
statutorily confined under s. 54 to hearing matters brought from certain
classes of persons.
[82]
One final point. While we agree with our colleagues that the
arbitrator’s decision regarding Dr. Guérin’s standing was reasonable, we do not
share their “floodgates” concern (paras. 58-59) arising from the potential
proliferation of matters coming before councils of arbitration should Dr.
Guérin be granted standing. While they see this as militating against granting
standing, we respectfully see this concern as tending to cut the other way. The
more persons who are placed in the difficult position in which Dr. Guérin finds
himself, the more compelling the basis for allowing him and others to have
their disputes heard by an impartial decision-maker.
English version of the reasons delivered by
Côté J. —
[83]
I cannot improve on what my colleagues Brown and
Rowe JJ. say on the standard of review to be applied with respect to the
arbitrator’s jurisdiction. I therefore concur with them on that issue. In other
words, I am of the opinion that the determination of whether it was open to the
arbitrator to hear the case of the respondent, Dr. Ronald Guérin, raises a
true question of jurisdiction, and that the appropriate standard in this regard
is correctness. I agree with Brown and Rowe JJ. that the arbitrator erred
in concluding that he did not have jurisdiction to hear the case before him.
[84]
I have also read what my colleagues Brown and
Rowe JJ. say on the standard of review to be applied on the issue of the
respondent’s standing, but in my view, their reasoning should have led them to
conclude that, in this case, the appropriate standard in this regard is
correctness. There are circumstances in which the issue of standing is a
question of jurisdiction, and in such a case, the appropriate standard of
review is correctness (Northrop Grumman Overseas Services Corp. v.
Canada (Attorney General), 2009 SCC 50, [2009] 3 S.C.R. 309, at
para. 10). In the case at bar, I am of the opinion that whether the
respondent had standing is a question of jurisdiction, because the arbitrator’s
interpretation of the Health Insurance Act, CQLR, c. A‑29
(“HIA”), and the Accord‑cadre entre le ministre de la Santé et
des Services sociaux et la Fédération des médecins spécialistes du Québec aux
fins de l’application de la Loi sur l’assurance maladie (“Framework
Agreement”) leads to the conclusion that he cannot hear any dispute submitted
by a medical specialist, except one with respect to fees.
[85]
However, even if the reasonableness standard is
applied on this issue, I am of the opinion that the arbitrator erred in
concluding that the respondent did not have standing in this case. The only
point of contention between myself and Brown and Rowe JJ. that merits
further discussion thus relates to the review of the arbitrator’s decision on
whether the respondent had standing.
A.
The Arbitrator’s Decision is Unreasonable
[86]
In applying the reasonableness standard, this
Court must determine whether the arbitrator’s decision is justified, transparent and intelligible, as well as whether it falls within a range of “possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir v. New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47). In my opinion, this
question must be answered in the negative: the arbitrator’s decision is not defensible
in respect either of the facts or of the law.
[87]
More specifically, the arbitrator’s conclusion
that the respondent did not have standing to submit his dispute is unreasonable
insofar as it is based on (1) a mischaracterization of the nature of the
dispute and (2) a misinterpretation of s. 54 of the HIA.
(1)
The Arbitrator’s Conclusion Is Based on a
Mischaracterization of the Nature of the Dispute
[88]
My colleagues Wagner and Gascon JJ. state
that “the arbitrator concluded that the subject matter
of Dr. Guérin’s proceeding was a declaration recognizing the laboratories
for the period at issue in the application” and that, “[i]n considering the motion for judicial
review, the Superior Court and the Court of Appeal were limited to determining
whether the arbitration award was reasonable, including in relation to the
subject matter of the dispute” (paras. 39 and 41).
They thus appear to be suggesting that the determination of the subject matter
of a dispute is binding on the courts and that such a determination is not
subject to judicial review. Yet it is clear that judicial review is appropriate
where an administrative decision maker mischaracterizes the subject matter of a
dispute. An administrative decision maker’s conclusion can be unreasonable if
it is based on a mischaracterization of the dispute before him or her. In my
view, that is exactly what has happened in this case.
[89]
The arbitrator noted that [translation] “[a] member or a group of
members of the [Fédération des médecins spécialistes du Québec] cannot go back
on the recommendation of the joint committee that was endorsed by the
Fédération des médecins spécialistes and have it reviewed and modified by way
of arbitration” (arbitration award, at para. 52, reproduced in A.R., at
p. 29). He concluded on this basis that the respondent could not “be allowed to
ask a council of arbitration . . . to modify in respect of him the
rules that the parties to the Framework Agreement, and they alone, negotiated” (para. 57).
[90]
But that is a mischaracterization of the nature
of the dispute. The respondent did not ask that the rules negotiated by the
parties to the Framework Agreement be modified. On the contrary, his challenge
was related to how the Fédération des médecins spécialistes du Québec and the
Régie de l’assurance maladie du Québec had interpreted and applied the
conditions for recognition. He characterized the subject matter of the dispute
as follows in his notice of dispute:
[translation]
1. The dispute concerns the interpretation and application of
s. 4.1(iv) of the Protocole concernant la
radiologie diagnostique of the Accord‑cadre entre
le Ministre de la santé et des services sociaux et la Fédération des médecins
spécialistes du Québec aux fins de l’application de la Loi sur l’assurance
maladie, which was introduced by Amendment 49, and subsequently replaced
by Amendment 54, to that agreement;
2. The dispute stems from decisions by the defendants to recognize the medical imaging laboratories (MILs) in which
the plaintiff and his mandators practise for the purposes of the digitization
fee provided for in the Protocole concernant la
radiologie diagnostique, effective June 21, 2011;
3. The plaintiff submits that a correct interpretation of the provisions
establishing the applicable rules would have led to their being applied such
that, as a result of the defendants’ decisions to recognize the MILs in
question, the plaintiff and his mandators may claim from the Régie de
l’assurance maladie du Québec the digitization fees provided for in the
Protocole since June 1, 2009; [reproduced at para. 2 of the
arbitration award.]
[91]
The respondent in fact concedes that he would
not have standing to contest the conditions of an agreement that has been duly
entered into under s. 19 of the HIA. What he was arguing before the
arbitrator was instead that the conditions for recognizing a laboratory for the
purposes of the digitization fee provided for in the agreement had been
incorrectly interpreted and applied, and that the laboratories at issue
should therefore have been recognized for the purposes of the digitization fee
for the period in question.
[92]
That is exactly what he requested from the
arbitrator in his notice of dispute:
[translation]
MAY IT PLEASE the council of arbitration
to grant the following conclusions:
DECLARE
that as of June 1, 2009, the medical imaging laboratories named below should
have been recognized for the purposes of section 4 of the Protocole concernant la radiologie diagnostique of the Accord‑cadre entre le Ministre de
la santé et des services sociaux et la Fédération de médecins spécialistes du
Québec aux fins de l’application de la Loi sur l’assurance maladie,
introduced by Amendment 49 to that agreement; [Emphasis added; arbitration
award, at para. 2.]
[93]
I agree with Schrager J.A., writing for the
majority of the Court of Appeal, that the [translation]
“physician contests the application to his . . . specific
situation of the existing conditions provided for in section 4. What the
respondent is asking does not amount to a request to (re)negotiate
section 4 when what is in issue is the interpretation and application of
the section proposed by the Fédération” (2015 QCCA 1726, at para. 39
(CanLII)).
[94]
The arbitrator’s characterization of the nature
of the dispute in this case thus completely disregards the notice of dispute
that instituted the proceeding.
[95]
In my opinion, given that the conclusion that
the respondent did not have standing is founded on a mischaracterization of the
nature of the dispute, it cannot be said to be reasonable in that it does not
fall within a range of “possible, acceptable outcomes which are defensible in
respect” of the pleading filed to institute the dispute and the declaration the
respondent was asking the arbitrator to make (Dunsmuir, at
para. 47). I am not suggesting that the arbitrator was necessarily bound
by the characterization proposed by the respondent. Rather, what I am saying is
that to find that the arbitrator’s decision was justified, transparent and
intelligible, we must at the very least be in a position to understand why he
reached the decision he did. That is not the case here.
(2)
The Arbitrator’s Conclusion Is Based on a
Misinterpretation of Section 54 of the HIA
[96]
In concluding that the respondent did not have
standing, the arbitrator interpreted s. 54 of the HIA narrowly, thereby
disregarding the applicable principles of interpretation to such an extent as
to overlook the fact that the section exists. For example, he made the
following comments at paras. 48 and 49:
[translation]
For the council of arbitration to be able to intervene in a case such as
this, it would have been necessary for there to be a clear provision, either in
the Act, where there is none, or in the Framework Agreement, to the effect that
a medical specialist or a group of medical specialists has the power either to
negotiate for recognition or to institute an arbitration proceeding to contest
the recommendation made by the joint committee [under] section 4.4 [of the
Protocole concernant la radiologie diagnostique] that they deem unsatisfactory.
The
negotiating parties did not intend to give the council of arbitration a power
of oversight in this regard, nor did they give individuals or groups the right
to contest a recommendation of the joint committee or the implementation of
such a recommendation by the Régie [de l’assurance maladie du Québec], which
has the authority to [translation] “follow up on notices received from the negotiating parties that
contain information needed to apply or to cease applying the digitization fee in a designated laboratory and sector of
radiological activity (section 4.6 of [the Protocole concernant la radiologie diagnostique]).”
He added the following at
para. 52:
A member or a group of members of the
[Fédération] cannot go back on the recommendation of the joint committee that
was endorsed by the Fédération des médecins spécialistes and have it reviewed
and modified by way of arbitration. Nowhere in the [HIA] or in the Framework
Agreement can a provision be found that authorizes the council of arbitration
to substitute its own opinion for that of the joint committee and its own
decision for that made by the negotiating parties further to the joint
committee’s report. If the negotiating parties had intended to confer on a
member of the [Fédération] or a
group of its members the right to contest a recommendation of the joint
committee before a council of arbitration, they would have had to state clearly
that the joint committee’s work and conclusions could be contested and modified
by means of the dispute procedure.
[97]
In my opinion, the legal basis whose existence
was called into question by the arbitrator is in fact found in s. 54 of
the HIA, which reads as follows:
54. A dispute resulting from the interpretation
or application of an agreement is submitted to a council of arbitration, to the
exclusion of any court of civil jurisdiction.
The composition of the council of
arbitration and the appointment of its members may be determined in an agreement.
If the composition and appointment are not so determined, they are determined
by the Minister of Labour after consultation with the bodies representing
professionals in the field of health.
[98]
I agree with the majority of the Court of Appeal
that [translation] “section 54
of the [HIA] is a ‘clear
provision’ in that it is drafted in broad language that does not admit, either
implicitly or contextually, of a construction that limits standing to apply for
arbitration to the Fédération and the Ministère” (para. 34 (footnote
omitted)).
[99]
I also agree with the conclusion of the majority
of the Court of Appeal that [translation]
“[t]he arbitrator limited the application of section 54 [of the
HIA] partly on the basis of sections 20.2 and 20.5 of Schedule 1 to the
Framework Agreement” and that “[t]his
is an error of law, and the resulting interpretation of the arbitrator is
neither rational nor a possible outcome on this issue” (para. 29). I note
that s. 20.2 of Schedule 1 to the Framework Agreement sets out the
procedure for submitting a dispute with respect to fees and that s. 20.5
of that same schedule provides that the Fédération may file a collective
dispute against the Minister, the Régie de l’assurance maladie du Québec or an
institution.
[100]
In allowing the preliminary exceptions that had
been submitted to him, the arbitrator completely disregarded the fundamental
principle of the hierarchy of rules, which may be summarized as follows:
[translation]
In any legal system, there is a hierarchy of legal rules: at its foundation
is the Constitution, upon which ordinary statutes are based, followed by
regulations and, finally, particular administrative acts and actual acts of
execution. The principles of supremacy of the Constitution and parliamentary
supremacy are what could be considered the constitutional base of our
administrative law. This leads to the fundamental rule that every government
power is necessarily a delegated power, that every government act derives its
only force from an Act of Parliament or of a legislature. That is what the
Supreme Court stated in 1943: “[E]very order in
council, every regulation, . . . every order, whether emanating
immediately from His Excellency the Governor General in Council or from some
[other] agency, derives its legal force . . . from [an] Act of
Parliament”. . . .
. . .
This principle applies to regulations, which are considered to be “delegated
legislation”, as well as to specific decisions and to contracts.
(P. Garant,
with P. Garant and J. Garant, Droit administratif (6th ed. 2010),
at p. 200)
[101]
It follows from this principle that the scope of
Schedule 1 to the Framework Agreement must depend on that of the HIA, not the
reverse. To interpret the scope of a statute by reference to the delegated
legislation and the contracts it authorizes (in this case, the Framework
Agreement) does violence to the structure of the legal framework established by
the HIA. Such a line of reasoning is as wrong as trying to define the scope and
substance of a right guaranteed by the Canadian Charter of Rights and
Freedoms on the basis of how it has been implemented by the legislature.
[102]
Sections 20.2 and 20.5 of Schedule 1 to the
Framework Agreement thus cannot take precedence over s. 54 of the HIA and
limit its scope absent an express statutory provision to that effect. The HIA
is a statute of public order (s. 104.1) that cannot be rendered
inapplicable by an agreement. Its public order status precludes the parties
from entering into an agreement that would deny s. 54 any effect with
regard to the respondent (Syndicat de la fonction publique du Québec v.
Quebec (Attorney General), 2010 SCC 28, [2010] 2 S.C.R. 61, at
para. 41). In my opinion, an interpretation that suggests otherwise cannot
be said to be reasonable.
[103]
Moreover, s. 41 of the Interpretation Act,
CQLR, c. I‑16, provides that “[e]very provision of an Act is deemed
to be enacted for the recognition of rights, the imposition of obligations or
the furtherance of the exercise of rights, or for the remedying of some
injustice or the securing of some benefit” and that “[s]uch statute shall
receive such fair, large and liberal construction as will ensure the attainment
of its object and the carrying out of its provisions, according to their true
intent, meaning and spirit”. It follows that the right provided for in
s. 54 of the HIA to submit any dispute resulting from the interpretation
or application of an agreement to a council of arbitration must be construed
broadly and liberally.
[104]
Section 54 of the HIA is drafted in broad, clear
language. It is “[a] dispute resulting from the interpretation or
application of an agreement [that] is submitted to a council of
arbitration, to the exclusion of any court of civil jurisdiction.” The scope of the section cannot be restricted by an agreement,
because no possible restrictions are provided for in the HIA.
[105]
As the motion judge noted, the word “dispute” in
s. 54 of the HIA is not defined in that Act, which means that it is
necessary to refer to the standard dictionary definitions. She quoted the
definition from the Petit Robert, according to which a différend
(dispute) is a [translation] “[d]isagreement
resulting from a difference of opinion or the competing interests of two or
more people” (2013 QCCS 6950, at para. 24 (CanLII), see also Le Petit
Robert (new ed. 2012), at p. 736). The majority of the Court of Appeal
agreed and added another definition from the Dictionnaire de droit québécois
et canadien, according to which a différend is a [translation] “disagreement between two
or more people” (para. 24, quoting H. Reid, with S. Reid, Dictionnaire
de droit québécois et canadien (4th ed. 2010), at p. 202).
[106]
In my opinion, when the negotiating parties [translation] “decide
on and designate the general radiology laboratories that will be recognized for
the purposes of the digitization fee” pursuant to s. 4.5
of the Protocole concernant la radiologie diagnostique, they are interpreting
and applying the agreement within the meaning of s. 54 of the HIA. A
dispute submitted to the arbitrator thus results from a difference of opinion
between the medical specialists and the negotiating parties. There is no reason
to limit the scope of s. 54 of the HIA, and in particular the concept of a
“dispute” within the meaning of that section, to disagreements between the
Fédération and the Minister as the arbitrator did.
[107]
Nor can it be said, as my colleagues Wagner and
Gascon JJ. suggest, that the Fédération’s monopoly of representation also
extends to the interpretation and application of the agreement. It is true that
the Fédération has a monopoly recognized by the Minister, which, moreover, the
respondent does not dispute, for the purpose of negotiating an agreement under
s. 19 of the HIA. However, the Fédération’s monopoly is limited to the
conclusion of such an agreement. The view that the Fédération’s monopoly also
extends to the application of the agreement cannot really be reconciled with
the fact that, generally speaking, “[t]he function of the [Régie de l’assurance
maladie du Québec is] to administer and implement the programs of the health
insurance plan instituted by the [HIA] and any other program entrusted to it by
law or by the Government” (An Act respecting the Régie de l’assurance
maladie du Québec, CQLR, c. R‑5, s. 2). That is why the HIA
entitles a medical specialist to submit a question relating to the
interpretation or application of the Framework Agreement to arbitration in
accordance with ss. 22.0.1 and 22.2 of the HIA where the Régie de
l’assurance maladie du Québec refuses to pay him or her a fee or requests the
reimbursement of such a fee. This being said, the existence of these specific
recourses, in which the opposing parties are the medical specialist and the
Régie de l’assurance maladie du Québec, in no way diminishes the existence and
the scope of the broader remedy provided for in s. 54 of the HIA for any other
dispute resulting from the interpretation or application of an agreement, in
which it would be possible for the opposing parties to be a medical specialist
and the Fédération.
[108]
I also note that my colleagues’ position
regarding the scope of the Fédération’s monopoly is based on principles of
Quebec labour law (Noël v. Société d’énergie de la Baie James, 2001 SCC
39, [2001] 2 S.C.R. 207, at para. 41). Yet the scheme of the HIA contains
no specific provision authorizing the Fédération to exercise all the recourses
the Framework Agreement grants to medical specialists as is the case with the
labour law scheme established by the Labour Code, CQLR, c. C‑27,
s. 69. In my opinion, it is not wise to import labour law principles, such
as that of the monopoly of representation granted to a union, into the scheme
of the HIA unless that Act expressly provides for this.
[109]
Wagner and Gascon JJ. state that the
interpretation of s. 54 of the HIA that I propose would result in an
unacceptable or inappropriate increase in arbitration cases. In this regard, I
adopt the argument of my colleagues Brown and Rowe JJ. that, on the
contrary, “[t]he more persons who are placed in the difficult position in which
Dr. Guérin finds himself, the more compelling the basis for allowing him
and others to have their disputes heard by an impartial decision‑maker”
(para. 82). This of course supports the view that it was unreasonable for
the arbitrator to conclude that the respondent did not have standing and in so
doing to prevent the respondent from applying to the forum provided for by the
legislature for submitting a dispute resulting from the interpretation or
application of an agreement.
[110]
On this last point, Wagner and Gascon JJ.
consider that the arbitrator did not leave the respondent without recourse, as
“[t]he courts would have jurisdiction if he were to
allege that the Fédération had not properly discharged its duty of
representation” (para. 60). But it is unrealistic
to argue that the courts would have been an appropriate forum for the
respondent, since, as my colleagues in fact acknowledge, the Fédération’s duty
of representation is limited to certain types of conduct: bad faith,
discrimination, arbitrary conduct and serious negligence (Noël, at
para. 46). In the instant case, the respondent alleges that the Fédération
misinterpreted and misapplied the conditions for recognizing his laboratory for
the purposes of the digitization fee provided for in the agreement, which does
not correspond to any of the types of conduct to which my colleagues refer.
[111]
In sum, in addition to disregarding the
fundamental principle of the hierarchy of rules by limiting the scope of the
HIA by reference to the agreement it authorizes, the arbitrator failed to apply
the relevant principles of interpretation as codified by the legislature. The
arbitrator’s conclusion that the respondent did not have standing was based on
an erroneously restrictive construction of the HIA and did not fall within a
range of possible, acceptable outcomes which are defensible in respect of the
applicable principles of interpretation (Dunsmuir, at para. 47). It
was therefore unreasonable.
B.
Conclusion
[112]
In my opinion, the arbitrator erred in
concluding that he did not have jurisdiction to hear the respondent’s dispute.
He also erred in concluding that the respondent did not have standing. I would
therefore dismiss the appeal.
APPENDIX
(Relevant
Statutory and Contractual Provisions)
Health
Insurance Act, CQLR, c. A‑29
22.0.1 Whenever the
Board [the Régie de l’assurance maladie du Québec] believes that a professional
in the field of health or a third person has exacted payment from an insured
person in contravention of this Act, where nothing in the regulations so
permits, or has claimed an amount exceeding the amount that would have been
paid by the Board to a health professional subject to the application of an
agreement for insured services furnished to an insured person who failed to
present his health insurance card, claim booklet or eligibility card, it shall
reimburse the amount so paid by the beneficiary and notify the professional or
the third person in writing thereof. The Board shall make such a reimbursement
solely where the insured person applies therefor in writing within one year
after the date of payment.
An amount so reimbursed and the administrative
costs prescribed constitute a debt toward the Board and may be recovered from
the professional in the field of health or third person by compensation or
otherwise, on the expiry of a period of 30 days from the date of the notice.
Within six months of the compensation, the
professional in the field of health may appeal from the Board’s decision before
the Superior Court or the Court of Québec according to their respective jurisdictions
or, in the case of a question of interpretation or application of an agreement,
before a council of arbitration established under section 54. The burden of
proving that the decision of the Board is ill‑founded is on the health
professional.
. . .
22.2 Where the Board
believes that services for which payment is claimed by a professional in the
field of health or for which he has obtained payment in the preceding 36 months
were services furnished in non‑conformity with the agreement, the Board
may refuse payment for such services or have them reimbursed by compensation or
otherwise, as the case may be. Disputes resulting from this paragraph are
settled by the council of arbitration instituted by section 54.
Where, after an investigation, the Board believes
that services for which payment is claimed by a professional in the field of
health or for which he has obtained payment in the 36 preceding months were
services that have not been furnished, that he has not furnished in person or
that he has falsely described, or services that were non‑insured
services, services not considered insured by regulation or services not
established as insured services by regulation, the Board may refuse payment for
such services or have them reimbursed by compensation or otherwise, as the case
may be.
Where the Board decides to refuse payment for
services or to make compensation, it must inform the professional in the field
of health of the reasons for its decision.
In the cases provided for in this section, the
burden of proof that the decision of the Board is ill‑founded, is on the
professional in the field of health.
A professional in the field of health who wishes
to appeal a decision of the Board before the Superior Court or the Court of
Québec according to their respective jurisdictions, must do so within six
months of receiving such decision.
For the purposes of this Act and within the
scope of the basic prescription drug insurance plan, the second, third, fourth
and fifth paragraphs, adapted as required, apply to an institution.
. . .
54. A dispute
resulting from the interpretation or application of an agreement is submitted
to a council of arbitration, to the exclusion of any court of civil
jurisdiction.
The composition of the council of arbitration
and the appointment of its members may be determined in an agreement. If the
composition and appointment are not so determined, they are determined by the
Minister of Labour after consultation with the bodies representing
professionals in the field of health.
Framework Agreement between the Minister of Health and Social
Services and the Fédération des médecins spécialistes du Québec for the
purposes of the Health Insurance Act [Accord‑cadre
entre le ministre de la Santé et des Services sociaux et la Fédération des
médecins spécialistes du Québec aux fins de l’application de la Loi sur l’assurance
maladie]
[translation]
SCHEDULE
1
. . .
TITLE 1.
GENERAL
. . .
SECTION 3.
REPRESENTATION
3.1 The
Minister recognizes the Fédération as the only organization representing
medical specialists for the negotiation and application of any agreement
concerning medical services and medical administrative duties performed in
hospital centres.
This recognition shall be binding on the Board
and on all institutions.
. . .
TITLE V.
ARBITRATION PROCEDURE
SECTION 20.
DISPUTE
20.1 A dispute shall
be filed by a medical specialist or by the Fédération in accordance with this
title.
There are two types of disputes: the dispute
with respect to fees and the collective dispute.
1. DISPUTE WITH RESPECT TO FEES
20.2 A medical
specialist may submit a dispute in response to a refusal of payment or a
request for reimbursement by the Board.
A physician who has not submitted an application
for review shall file such a dispute within six months of receipt of the Board’s
decision concerning a refusal of payment or a request for reimbursement.
A physician who has submitted an application for
review shall file such a dispute within six months of receipt of the Board’s
decision further to the submissions process provided for in section 15.
The filing of a notice of dispute terminates the
submissions process.
The Fédération may, in the same circumstances,
act on behalf of one or more medical specialists.
20.3 A dispute
with respect to fees shall not be heard if it is within the exclusive
jurisdiction of the Commission des Affaires sociales.
20.4 A medical
specialist may submit a dispute against an institution in the event of a
disagreement regarding the application of his professional services contract.
2. COLLECTIVE DISPUTE
20.5 The
Fédération may file a collective dispute against the Minister, the Board or an
institution.
It may in so doing raise any disagreements
relating to the application of this agreement.
It may also contest any administrative
instrument — such as a directive, a decree, a contract of affiliation or an
organization plan — that it considers to be in contravention of this agreement.
SCHEDULE 5
LABORATORY
MEDICINE TARIFF [Tarif de la médecine de laboratoire]
. . .
DIAGNOSTIC
RADIOLOGY PROTOCOL [Protocole concernant la
radiologie diagnostique]
. . .
SECTION
4
DIGITIZATION FEE:
RECOGNITION OF LABORATORIES
4.1 For the purpose of promoting the digitization of radiology equipment
in general radiology laboratories, a digitization fee (R=9) shall be applicable
in laboratories that are recognized by the negotiating parties for the
designated sectors of radiological activity.
For the pursuit of that purpose,
three separate areas of activity shall be recognized: general radiology,
mammography and fluoroscopy.
4.2 In order to be recognized, a general radiology laboratory identified
in the list provided for in section 1 shall satisfy the following
conditions:
(i)
All the equipment of the laboratory that is
used in the sector of radiological activity for which the digitization fee is
being claimed must be digitized;
(ii) In respect of the digitization fee applicable in either the mammography
or the fluoroscopy sector of activity, all the equipment used in the general
radiology sector of activity must also be digitized;
(iii) The laboratory must have a PACS that is compatible with the
mandatory standards for the archiving of pictures in the regional diagnostic
imaging repository and for feeding this repository in accordance with its
archiving capacity via a network connection to which the laboratory is given
access.
The
costs of the network connection up to the market cost of a standard business
line shall be borne by the laboratory; all additional costs shall be borne by
the Ministère de la Santé et des Services sociaux or another organization it
designates.
(iv) All the radiology equipment and the PACS used in a general radiology
laboratory for which a digitization fee is being requested (hereinafter
referred to as the “radiology equipment”) shall belong to and mainly benefit
medical specialists in radiology practising in the context of the health
insurance plan (hereinafter referred to as the “radiologists”).
. . .
4.3 A medical specialist in radiology who wishes to obtain
recognition of a general radiology laboratory for the purposes of the
digitization fee shall submit an application to that effect to the negotiating
parties.
He
shall indicate the sector of radiological activity for which the digitization
fee is being requested and provide all information and documents that will be
needed in order to analyze his application and that will show that the
conditions set out in section 4.2 have been satisfied.
4.4 There shall be established a joint committee composed of equal
numbers of representatives of the Fédération and the Ministère de la Santé et
des Services sociaux to which shall be referred any applications for
recognition submitted under section 4.3 for the purposes of the
digitization fee.
After
analyzing an application, the joint committee shall make a recommendation to
the negotiating parties.
4.5 Further to the joint committee’s recommendations, the negotiating
parties shall decide on and designate the general radiology laboratories that
will be recognized for the purposes of the digitization fee together with the
applicable sectors of radiological activity.
4.6 The Board shall follow up on notices received from the
negotiating parties that contain information needed to apply or to cease
applying the digitization fee in a designated laboratory and sector of
radiological activity.
Appeal
allowed with costs in all courts, Côte J.
dissenting.
Solicitor for the appellant: Bernard, Roy (Justice Québec),
Montréal.
Solicitors
for the respondent: Bélanger Sauvé, Montréal.
Solicitors for the
intervener Fédération des médecins spécialistes du Québec: Municonseil
avocats inc., Montréal.